Greens' claims over Ferguson lobbying are in the ballpark

It’s not unusual for former government ministers to find top paying jobs in the private sector. But two recent appointments of former federal resources and energy minister, Martin Ferguson, have drawn the ire of Australian Greens' leader Christine Milne.

Mr Ferguson's new roles, six months after he resigned from federal cabinet in March, made a mockery of the lobbying code of conduct, Senator Milne said.

"Martin Ferguson's appointment as group executive of natural resources for Seven Group Holdings and as chair to a petroleum industry advisory board makes a mockery of the code of conduct which prevents former ministers engaging in lobbying activities relating to any matter that they had official dealings in," she said.

The claim: Christine Milne says former resources minister Martin Ferguson's new jobs make a mockery of the lobbying code of conduct.

The verdict: By taking up the appointment within the cooling off period it can be argued that Mr Ferguson has made a mockery of the intent and spirit of the code.

The new jobs

Mr Ferguson accepted a role as chairman of an advisory board of the gas and oil industry's peak body, the Australian Petroleum Production & Exploration Association.

The association's website acknowledges its status as a lobby group, saying it "works with Australian governments to help promote the development of the nation's oil and gas resources in a manner that maximises the return to the Australian industry and community". Its board includes representatives from Australia's largest oil and gas companies including resources giants BHP Billiton, Origin Energy and Shell.

Mr Ferguson has taken a newly-created position of chairman of the association's advisory board.

The association's chairman, David Knox, says of Martin Ferguson, who served as energy minister for over five years: "There are few people in Australia with such a comprehensive understanding of Australia's oil and gas industry."

He says as chairman of the advisory board, Mr Ferguson will be responsible for "providing strategic advice" to the chair, board and chief executive of the association.

Mr Ferguson is also due to take up the position of group executive, natural resources, at Kerry Stokes' Seven Group on October 9, also a newly-created position. Seven Group has an interest in WesTrac, a provider of construction and mining equipment.

Mr Ferguson told the Australian Financial Review his "skills and contacts" as a former resources minister would be a major advantage for Seven Group. "What I will be looking for is to develop the mining sector with Seven Group," he said.

The Lobbying Code

The code says: "Persons who, after 6 December 2007, retire from office as a Minister or a Parliamentary Secretary, shall not, for a period of 18 months after they cease to hold office, engage in lobbying activities relating to any matter that they had official dealings with in their last 18 months in office".

It defines "lobbying activities" as any oral, written, or electronic communications with a government representative in an effort to influence government decision-making.

There are a number of exclusions. One is when statements are made in a public forum.

This would cover Mr Ferguson's recent appearance at the recent NSW Energy Security Summit on September 26 which he co-chaired and was attended by the federal resources minister, Ian MacFarlane and NSW resources minister, Chris Hartcher, and hundreds of industry delegates.

After the summit Mr Ferguson appeared on ABC's The Business program. He talked about coal seam gas potential in NSW for big gas producers Santos and AGL.

Mr Ferguson said: "It's the responsibility of all levels of government, plus the private sector, to get the gas out of the ground." Later in the same interview he said: "Our challenge is getting through the regulatory process".

Two days later Mr Ferguson's appointment to the gas and oil lobby group was announced.

Ministerial Code of Conduct

Another set of rules which covers the conduct of ministers is Standards of Ministerial Ethics. This was first issued in 1996 during John Howard's government. In 2007, the then prime minister Kevin Rudd replaced some of the code, including the part that refers to the employment of ministers after they leave parliament.

The standards says for eighteen months after ceasing being a minister they "will not lobby, advocate or have business meetings with members of the government, parliament, public service or defence force on any matters on which they have had official dealings as Minister in their last eighteen months in office."

It also says "ministers will not take personal advantage of information they received as a minister that isn't available to the general public".

Senator Faulkner says: "The combination of these Standards and the Lobbying Code means the public can be confident that Ministers will not be able to use the experience and contacts they have gained in office to enhance their value to the private sector, either as lobbyists or as senior executives in business with the Government".

Spirit of the Code

Emeritus Professor John Warhurst from the School of Politics at the Australian National University says of Mr Ferguson's appointment to a lobby group: "It's a grey area. If he is on an advisory board, he might not be personally doing lobbying".

He said Mr Ferguson's acceptance of the position so soon after resigning "may be seen to be against the spirit" of the 18-month cooling off period.

Senator Faulkner says the public is concerned about politicians who immediately begin a a career in lobbying "using contacts they developed and information they obtained while in office".

He says the code was intended to promote trust in the integrity of government process.

Mr Ferguson's job as an advisor to an oil and gas lobby group does not appear to directly breach the Lobbying Code, but is it at odds with the intent of the code?

Mr Ferguson is aware of his obligations under both codes but not across the detail of the 18-month cooling off period. At a gas conference in Adelaide last week Mr Ferguson told a press conference: "I can not lobby, for a period of 12 months, on any things I directly handle. I resigned in March, so I am well into the 12 months".

In a submission to a Senate Inquiry on the Lobbying Code in 2008 Professor Warhurst said: "Evaluated on its own terms the potential problem of lack of teeth and lack of real sanctions remains".

Neither the lobbying code nor the ministerial code is underpinned by legislation, nor do they carry any specific penalties for those who breach them.

Other countries' codes

In Britain the ministerial code says: "On leaving office, Ministers will be prohibited from lobbying Government for two years. They must also seek advice from the independent Advisory Committee on Business Appointments about any appointments or employment they wish to take up within two years of leaving office. Former Ministers must abide by the advice of the Committee". The committee is an advisory body and has no enforcement powers.

In Canada, the post-employment code for ministers says for a period of two years former ministers must not "accept services contracts, appointment to a board of, directors of, or employment with, an entity with which they had direct and significant official dealings during the period of one year immediately prior to the termination of their service in public office". The code is backed up with the Federal Accountability Act 2006.

The verdict

There is no evidence that Mr Ferguson has breached the code. But by taking up the appointment within the cooling off period it can be argued that he has made a mockery of the intent and spirit of the code. Senator Milne's claim is in the ballpark.

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